Publisher's bewear: unintended typos could expose you to defamation action

The importance of carefully managing conduct online has been reinforced by the New South Wales District Court, which has delivered a decision that serves as a reminder that imprecise language may result in defamatory imputations being conveyed – and defamation law is blind to what the author's actual intentions were (unless malice is involved) (Gan v Zadravic [2021] NSWDC 533).

On 22 October 2020, Mr Zadravic a former employee of a real estate business co-owned by the plaintiff, Mr Gan, published the following post on his private Facebook page:

“Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can't pay his employees superannuation.

Shame on you Stuart!!!

2 yrs and still waiting!!!”

Consequently, Gan, brought defamation proceedings against Zadravic in 2021 in which he alleged that the following defamatory imputations were made:

• That Gan takes advantage of his employees by not paying them their superannuation entitlements.
• That Gan is deceitful by misappropriating funds.
• That Gan is not a good employer to work for in that he has disregard for his employees.

In September 2021, Zadravic filed an application to seek a summary dismissal of Gan's proceeding, in part because he claimed that the pleaded imputations were not conveyed. He also made proportionality submissions, including that the circumstances of the publication gave way to a defence of triviality and justification. Zadravic argued that this latter submission was evidenced by the facts that:

• the publication was made late at night, at 10.30 pm, and removed less than 12 hours later; and
• of Gan's 900-odd Facebook friends, fewer than 10 appeared to be mutual friends with Zadravic.

Insofar as these contextual circumstances are concerned, it should be noted that the publication in Gan's claim predates the commencement of the 2021 Defamation Law Reforms, which repealed the defence of triviality (previously section 33 of the Act) and has added a requirement that a plaintiff’s case now meet the “serious harm threshold” (section 10A).

The practical effect of this reform (which took effect in Queensland, New South Wales, Victoria, and South Australia with respect to publications made on or after 1 July 2021) is a shift of onus, from the defendant bearing the onus of proving the claim is of a trivial nature (by way of a defence) to a requirement that the plaintiff demonstrate that the publication has caused serious harm, in effect as a further element of the claim itself.

Typos matter

Nonetheless, by either metric the court noted that Zadravic's claim was plagued by the absence of an apostrophe between the “e” and “s” in the word “employees”. This meant that a reasonable reader would conclude that multiple employees had not been paid superannuation: a broader imputation of systematic and/or deliberate conduct. The court considered this to be a particularly serious imputation, in part due to a failure to pay superannuation entitlements potentially attracting criminal liability. It also made the prospect of a justification/truth defence to be rather unlikely. (Even if Zadravic established that he had not been paid his superannuation entitlements (which was not supported by an affidavit from Gan's company accountant), there was no evidence of failure to pay other employees their entitlements).

While the case contains a useful summary of the development of concepts of proportionality, and an observation that the principles of proportionality and triviality are not cumulative, but are alternatives (or at best overlap), that is a topic for another day. For present purposes, the case highlights two important factors relevant to defamation related matters:

Intention is (largely) irrelevant

Because defamation is a tort of strict liability, when the court determines the question of defamatory imputation it is irrelevant to that determination whether an individual intended to defame someone or not.

Zadravic suggested that he intended in his Facebook post to only assert that he personally was not paid superannuation entitlements, (presumably meaning that he did not intend to convey any imputation about the position of any other employees). Whatever the veracity of that assertion, the typographic error in his post resulted in a substantially different imputation being made. The court was satisfied that the imputation of failing to pay superannuation payments for "employees" was a serious allegation which, on a summary basis, would sufficiently fall outside the bounds of a triviality defence.

Where a publisher intends one meaning but the court finds that intention is not reflected by what was actually published and another defamatory pleaded imputation arises, one may expect that to have adverse consequences for the publisher. This is because, once the elements of a cause of action are established, a presumption of damage to reputation and falsity arises, with the onus then shifting to the defendant to establish a positive defence. This is so, even with plaintiffs now bearing the onus of proving “serious harm”. Intention is not disregarded entirely by plaintiffs, however, as it may indicate whether a publication was malicious, which can then aggravate the damages payable.

Publishers should therefore be cautious and careful to ensure that their publication does not convey an unintended meaning (even if through a syntactical or typographical error) which could give rise to defamatory imputations.

Once “publication” occurs online, it can be hard to convince a court that little harm is likely to have occurred

The court noted that:

• the common professional background of Gan and Zadravic was relevant to the nature and extent of the publication. The publication in question related to Gan's conduct as a real estate agent in circumstances where the likelihood was that other persons who were Facebook friends with Zadravic had an interest in real estate, bearing in mind that Zadravic was a real estate agent also. If the subject of the post had related to some more obscure activity of the kind unlikely to be shared by other Facebook users of Zadravic, the degree of interest to the other Facebook friends would therefore likely be less.
• while Zadravic's affidavit set out that he had 913 Facebook friends at the time, less than 10 of whom were mutual friends with Gan, he failed to identify any of the 913 Facebook friends. This meant for example, that:
• the court did not know, whether the two persons identified by Gan as having been readers of the post were also Facebook friends of Zadravic;
• if there were up to 10 people who were Facebook friends of Zadravic who were also friends of Gan, the likelihood is that, because of the common background of real estate interests, Zadravic and Gan share a number of acquaintances.
• a large part of the 10-12 hour period of time during which the post was online was during the night (it was posted at 10.30pm). Nevertheless, the nature of social media is such that, given the continuous feed of posts scrolling through accounts, the first 12 hours or so can be the most potent, in terms of the nature and extent of harm. As many social media users (and advertisers) know, reading social media posts late at night is a relatively common activity.

Despite the Facebook posts being online for only half a day, and exposed to only a handful of individuals apparently known by both parties, the court accepted the severity of the allegations effectively disentitled Zadravic to summary dismissal of Gan's proceedings.

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